Benson: McCarthy's Work at EPA Should Start With Backing Off Coal Ash

During Lisa P. Jackson’s Senate confirmation hearing in January 2009, the incoming EPA administrator pledged to create national standards for coal ash disposal by the end of that year. Now, more than four years later, the Environmental Protection Agency is mired in a seemingly endless process of its own making — a process that has produced no standards but has created plenty of regulatory uncertainty that is harming our environment daily.

But post-election, there’s reason to be hopeful again. President Barack Obama’s pick to lead the EPA, Gina McCarthy, has the opportunity to provide a clear path forward on coal ash regulation. And she can do so before she even takes office, during her upcoming Senate confirmation hearings. McCarthy can tell members of Congress that she plans to lead the agency in a balanced and reasonable way and take the unwarranted proposed hazardous waste designation for coal ash off the table.

It’s the right thing to do.

The coal ash market needs to know the rules of the road, and the public needs to know that appropriate environmental standards are in place for coal ash disposal. Under the status quo, the coal ash market is living under a damaging cloud of uncertainty, and there are no minimum federal regulations for disposal — and that’s not workable for anyone.

Throughout the 1990s — when the regulations were clear and defined — coal ash use was thriving at rates above 20 percent. In 2000, when the coal ash beneficial use rate was 29.7 percent, the EPA under President Bill Clinton issued its Final Regulatory Determination stating that coal ash was not “hazardous waste.” Over the ensuing eight years, the EPA also began actively promoting the beneficial use of coal ash — and the use rate soared to 44.5 percent.

The dramatic growth in coal ash use occurred in the 2000s because regulatory certainty encouraged people to invest in it and because the EPA actively encouraged it. But since 2009, when the EPA created ambiguity about the future regulation of the industry, growth in the coal ash industry stalled. At the 2008 peak, 60.6 million tons of coal ash was put to beneficial use. If the past three years had simply remained on par with 2008, 14.2 million fewer tons of coal ash would have been disposed in landfills and impoundments.

The debate over coal ash regulation is really not about the hazardousness of coal ash as a material. The EPA acknowledges that coal ash does not qualify as a hazardous waste based on its chemical characteristics.

Rather, the debate is about enforcement authority. The way the law is written today, the EPA must declare coal ash hazardous in order to get direct enforcement authority. Yet while regulators and elected officials argue, dither and debate, no regulations are being enacted.

There are many reasons to view coal ash as a resource. Coal ash is in concrete supporting many of our nation’s roads, bridges, buildings and runways. The EPA headquarters in Washington, D.C., and the Hoover Dam were constructed with coal ash, as was the new I-35 bridge in Minneapolis and the Audubon Bridge in Louisiana, the longest cable-stayed span in the country.

Coal ash materials are also routinely used in agriculture to improve soils — increasing yields and preventing polluting nutrients from running off into waterways.

Coal ash materials can also reduce energy consumption, water usage and greenhouse gas emissions. For every ton of coal ash used in place of cement, carbon dioxide emissions from cement manufacturing decrease by a ton.

As the EPA’s website says of the beneficial use of fly ash: “To the benefit of human health and the environment, recycling and use of waste materials avoid disposal and decrease these and other adverse impacts ... coal ash is primarily composed of basic minerals like calcium, silica, iron, and aluminum, which are valuable minerals that can be put to beneficial use in many ways that are safe and protective.”

The EPA took its current rule-making upon itself. The agency has no legislative or judicial deadline to do anything about coal ash. But to cast an entire industry into a regulatory tailspin for years and then refuse to resolve it is an injustice. I sincerely hope McCarthy will recognize this and will work expeditiously to correct it.

Kirk Benson the chairman and CEO of Headwaters Inc., a major manufacturer of building products and marketer of coal fly ash.